Thomas Potter, III

Thomas Potter, III

Burr & Forman

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Latest Publications


FINRA’s Cross-Selling Sweep Exam

In late October, FINRA issued a sweep exam, commanding firms to produce 15 categories of documents about firm’s cross-selling programs over a 5-year span. The sweep seeks information on cross-selling, including incentives...more

11/10/2016 - Broker-Dealer Cross-Selling Financial Sector FINRA Industry Examinations

PIABA Slams Broker-Check Again

The Public Investors Arbitration Bar Association (PIABA) renewed its criticism of FINRA’s Broker-Check® system in a report issued in late October. PIABA was especially critical of the system’s: Lack of synchronization...more

11/9/2016 - Brokers Databases Financial Markets Financial Sector FINRA Investment Investors

Banking & Financial Services E-Note - October 2016

Burr & Forman lawyers won a significant victory in the Eleventh Circuit earlier this month. In the case In re: David A. Failla, the U.S. Court of Appeals for the Eleventh Circuit affirmed that a person who agrees to...more

10/31/2016 - ATDS Banks Bond Financing Consumer Bankruptcy Debt Collection Dodd-Frank FDCPA Financial Institutions Financial Sector Foreclosure Investment Management Midland Funding v Johnson Mortgage Lenders Mortgages Retirement Shopping Centers TCPA Time-Barred Debt

6th Circuit Orders Pay-to-Play Challenge to Merits Panel

The Sixth Circuit this week declined the SEC’s request to dismiss a Constitutional challenge to the new MSRB pay-to-play rules.  Instead, the Court ordered the case to a merits panel for consideration.  The Republican parties...more

10/10/2016 - Administrative Merits Determinations Broker-Dealer Financial Markets Financial Sector Investment Adviser Motion to Dismiss MSRB Municipal Advisers Pay-To-Play SEC Securities

Tilton Tilts at SEC Enforcement, Again

Having lost her initial suit (and appeal) to enjoin an SEC administrative enforcement action against her, the so-called “diva of distressed,” Lynn Tilton recently filed another lawsuit trying to halt her upcoming October 24...more

9/14/2016 - Administrative Proceedings ALJ Appointments Clause Due Process Enforcement Actions Fifth Amendment SEC Securities Litigation

Tennessee Securities Division Ramps Up Enforcement

The Securities Division of Tennessee’s Department of Commerce and Industry has increased its enforcement activity during 2016. The recent actions include: Final Administrative Orders: Clifton Alexander and

9/13/2016 - Broker-Dealer Cease and Desist Orders Consent Order Enforcement Actions Financial Markets Financial Sector Investment Adviser Securities Securities Violations

SEC Fines Company for Agreements Restricting Whistleblowers

The SEC has fined an Atlanta company $265,000 for using various severance agreements restricting whistleblower activities. The Dodd-Frank Act added ’34 Act § 21F encouraging whistleblower programs. The SEC adopted Rule...more

9/12/2016 - BlueLinx Holdings Confidential Information Dodd-Frank Employer Liability Issues Government Agencies Government Investigations Hiring & Firing Popular SEC Severance Agreements Whistleblower Protection Policies Whistleblowers

SEC Approves FINRA & MSRB (Almost) Pay-to-Play Rules

The SEC announced August 25 that it approved FINRA’s pay-to-play rules governing placement-agent or solicitor broker-dealers and was “prepared” to approve the extension of MSRB Rule G-37 to municipal advisors as well....more

9/8/2016 - Broker-Dealer Dodd-Frank Financial Markets FINRA Investment Adviser MSRB Municipal Advisers Pay-To-Play Rule 206(4)-5 Rule G-37 SEC Securities

SEC Sanctions 71 Municipal Issuers for Misstatements

On August 24, the SEC announced settled administrative actions against 71 state and local issuers arising from $3.7 trillion in municipal securities offerings.  The Commission alleged the issuers made false statements...more

9/6/2016 - Administrative Proceedings Cease and Desist Orders Disclosure Requirements Enforcement Actions False Statements Financial Markets MCDC Municipal Bonds Municipal Securities Issuers Municipal Securities Market Sanctions SEC

Circuits Split on “Look-Through” Jurisdiction Over Arbitration Awards

Within weeks, the Second and Third Circuits reached opposite conclusions over federal jurisdiction to confirm, modify or vacate arbitration awards.  The Second Circuit now allows courts to look through the face of the...more

9/1/2016 - Arbitration Arbitration Awards Corporate Counsel Federal Arbitration Act Federal Jurisdiction Manifest Disregard Securities Litigation

Corporate E-Note - August 2016

In a “Table of Experts” series published on July 15, 2016 by the Birmingham Business Journal, Ed Christian provides his insight into a series of questions related to mergers and acquisitions. Please see full E-note below...more

8/30/2016 - Acquisitions Administrative Proceedings ALJ Business Associates Business Development Business Model Business Plans Business Pursuits Corporate Counsel Corporate Entities Covered Entities Cyber Threats Cybersecurity Data Breach Doing Business Foreign Jurisdictions Health Care Providers Healthcare Malware Mergers OCR Ransomware SEC Securities Litigation Whistleblowers

SEC Continues Crackdown on Whistleblower Restrictions: Calls Qui Tam Waivers "Targeting"

The SEC announced its second enforcement action in a week against a company using severance or confidentiality agreements requiring employees to waive whistleblower bounties or their right to bring a qui tam action....more

8/18/2016 - Confidential Information Corporate Counsel Dodd-Frank Enforcement Actions Fines Health Net Qui Tam SEC Securities Violations Severance Agreements Whistleblower Awards Whistleblowers

SEC Fines Company for Agreements Restricting Whistleblowers

The SEC has fined an Atlanta company $265,000 for using various severance agreements restricting whistleblower activities. The Dodd-Frank Act added ’34 Act § 21F encouraging whistleblower programs....more

8/15/2016 - Civil Monetary Penalty Confidential Information Dodd-Frank Employment Contract Rule 21F SEC Securities Exchange Act Securities Violations Severance Agreements Unfair Labor Practices Waivers Whistleblower Awards Whistleblower Protection Policies Whistleblowers

DC Circuit Upholds SEC ALJs in First Merits Opinion

The D.C. Circuit has affirmed that SEC ALJs are not constitutional Officers subject to the Appointments Clause, rejecting perhaps the strongest of the constitutional challenges to the Commission’s administrative forum. The...more

8/10/2016 - Administrative Proceedings ALJ Appointments Clause Article II Enforcement Actions Sanctions SEC Securities Securities Fraud

FINRA Defends Mandatory Arbitrations; Threatens Discipline

In a July 22 Notice, FINRA took umbrage at a growing line of Court decisions suggesting that a later or more-specific forum selection clause in an agreement between the parties may override a prior customer arbitration...more

8/4/2016 - Arbitration Arbitration Agreements Consumer Contracts Financial Sector FINRA Forum Selection

SEC & MSRB’s Pay-to-Play Rule: “Governing Games - Mocking, Part 2”

This SRO gamesmanship is making a mockery of governing. The latest is the SEC’s position that it didn’t take any action on the new MSRB Rules extending pay-to-play prohibitions to municipal advisors, so it can’t be sued...more

8/2/2016 - Bonds Dodd-Frank MSRB Municipal Advisers Municipal Bonds Pay-To-Play Regulatory Oversight Rule G-37 SEC Securities Securities Exchange Act SRO

6th Circuit Joins Majority, Accepting "Materialization of the Risk"

Last month, the 6th Circuit joined the majority view recognizing the “materialization of the risk” theory of loss-causation as an alternative to “corrective-disclosure” in securities litigation under Rule 10b-5....more

8/1/2016 - Corrective Actions Disclosure Requirements Financial Markets Loss Causation Material Misrepresentation PSLRA Rule 10b-5 SEC Securities Securities Litigation Twombly/Iqbal Pleading Standard

11th Circuit Holds Judicial Review of SEC ALJs Premature

The Eleventh Circuit Friday joined three others in concluding that Congress intended Respondents must wait until appeal from the Commission to have a Court consider their challenges to the Constitutionality of the SEC’s...more

6/20/2016 - Administrative Proceedings ALJ Bebo v SEC Enforcement Actions SEC Securities Exchange Act Securities Litigation

Chameleon SROs: The Gov’t, But Not Really

For years, self-regulatory agencies (like FINRA or the Exchanges) have wielded the statutory authority granted them by Congress – and backed by the SEC – exercising governmental power to compel testimony, impose fines and...more

6/9/2016 - Financial Markets Fines FINRA IRS Penalties SEC Securities Exchange Act Securities Regulation SRO Tax Deductions

2nd Cir. Joins 7th & D.C. Requiring Exhaustion to Challenge SEC ALJs

The Second Circuit has affirmed dismissal of “diva of distressed” Lynn Tilton’s constitutional challenge to the SEC’s administrative forum, holding that issue isn’t reviewable by the courts until an appeal after two levels of...more

6/3/2016 - Administrative Appeals Administrative Proceedings ALJ Dismissals Exhaustion Doctrine Judicial Review SEC

11th Cir: SEC Disgorgement, Declarative Relief Subject to 5-Yr Bar

Last week, the 11th Circuit held that the limitations period of 28 U.S.C. § 2462 bars disgorgement or declarative relief for acts having occurred five years before the SEC files an action. The Court drew a distinction...more

6/2/2016 - Cause of Action Accrual Declaratory Relief Disgorgement Enforcement Actions Injunctive Relief SEC Statute of Limitations

It’s Good to be the King: Nullus Tempus Allows TN Fund’s Suit on Decade-Old RMBS Buys

Chancellor Carol McCoy allowed a Tennessee state retirement fund’s securities suit over decades-old RMBS purchases to continue last week, holding that time doesn’t run against the king – even on statutes of repose....more

6/1/2016 - Fraud Investment Funds Misrepresentation Retirement RMBS Securities Violations

TN Securities Division Urges Investors to Question Advisors

In a recent new release, the Tennessee Securities Division urged investors to ask tough questions of their investment advisors, and about their compensation, account arrangements and educational / regulatory history. The May...more

5/31/2016 - Broker-Dealer BrokerCheck Compensation Schemes FINRA Investment Adviser Public Disclosure SEC

DOL Fiduciary Rule Re-Makes Retail IRA Advice

Congress voted this week to de-rail the Department of Labor’s sweeping fiduciary-duty suite of rule-making, but doesn’t have the votes to override the President’s threatened veto....more

5/26/2016 - Best Interest Contract Exemptions Best Interest Standard Conflicts of Interest DOL ERISA Fiduciary Duty Investment Adviser IRA Retirement Plan

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